DATE: 19990407
DOCKET: C28667
COURT OF APPEAL FOR ONTARIO
MORDEN A.C.J.O., AUSTIN and ROSENBERG JJ.A.
BETWEEN: ) Alan N. Young and
) Richard Litkowski,
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) D. D. Graham Reynolds, Q.C.,
) for the respondent
PETER KORNEL POLASHEK )
)
Appellant )
) Heard: February 18 and 19,
) 1999
ROSENBERG J.A.:
[1] This appeal from conviction for possession of narcotics for
the purpose of trafficking and possession of L.S.D. raises an
issue respecting the application of a doctrine referred to in the
United States as the “plain smell doctrine”. The appellant
argues, in short, that a police officer had no lawful basis for
searching his person and his motor vehicle based on the smell of
marijuana emanating from the vehicle. Accordingly, it is argued
that the appellant was subjected to an unreasonable search and
seizure in violation of s. 8 of the Charter of Rights and
Freedoms. The appellant also raises an issue concerning his right
to counsel under s. 10(b) of the Charter. Finally, the appellant
appeals against the sentence of five months imprisonment imposed
by the trial judge. For the reasons that follow, I would allow
the appeal from conviction and order a new trial by reason of the
violation of the appellant’s rights under s. 10(b) of the
Charter.
THE FACTS
[2] On July 5, 1996, at about 1:00 a.m., the appellant was
stopped by Constable Ross of the Peel Region Police, for a
Highway Traffic Act violation. It is conceded that this stop was
lawful. Constable Ross had a 20 to 30 second conversation with
the appellant while the appellant was in the vehicle. In the
course of this conversation, Ross detected a “strong odour” of
marijuana emanating from the vehicle. Ross, however, saw no smoke
and could not tell whether the odour was of burnt or unburned
marijuana. He told the appellant that he smelled marijuana. The
appellant looked to his right and then over both shoulders to the
rear of the vehicle and said, “No, you don’t.” Based on the
smell, the appellant’s response to the question, the area of
Mississauga where he stopped the appellant, and the time of
night, the officer believed that he had grounds for arresting the
appellant for possession of narcotics.
[3] Constable Ross asked the appellant to leave the vehicle and
subjected him to a cursory search. In the right front pocket of
the appellant’s shorts, the officer found a black leather key
purse. In the purse were three individually wrapped pieces of a
“dark tar like substance”. The officer believed this substance to
be cannabis resin. He then placed the appellant under arrest for
possession of marijuana and continued the search and found over
$4,000 in cash in the appellant’s pockets. The appellant was
handcuffed and placed in the cruiser.
[4] With the assistance of another officer who had arrived on
the scene, Constable Ross searched the vehicle. Constable Ross
found a registration permit in the glove compartment. This permit
indicated that the vehicle was owned by someone other than the
appellant.
[5] In the trunk, the assisting officer found shoeboxes
containing wrapped bags of marijuana, a scale and rolling
tobacco. She also found a small film container that contained a
small amount of L.S.D. At this time, the appellant was placed
under arrest for possession of a narcotic for the purpose of
trafficking. Constable Ross for the first time informed the
appellant of his rights under s. 10(b) of the Charter. This was
some 13 minutes after the initial arrest. The appellant stated
that he understood his rights and wished to reserve his right to
speak to a lawyer until later. Ross asked the appellant if he
wanted tell him about the “dope”. The appellant replied, “What
can I say? You caught me; I’m busted.”
[6] The appellant did not testify either on the voir dire to
determine the admissibility of the evidence or on the trial
proper.
THE TRIAL JUDGE’S REASONS ON THE CHARTER MOTIONS
[7] The trial judge reviewed the evidence concerning the grounds
for the initial arrest for possession of marijuana and held that
the officer had both subjective and objective reasonable grounds
for arresting the appellant. Since the officer had proper grounds
for the arrest, he was entitled to conduct a search of the
appellant before placing him under arrest. The officer was then
entitled to search the vehicle, including the trunk, as an
incident to the arrest and without a warrant, notwithstanding
there were no exigent circumstances. Accordingly, the trial judge
held that the appellant’s rights under s. 8 of the Charter were
not infringed. In the alternative, even if the officer did not
have reasonable and probable grounds, the trial judge held that
there was authority (R. v. Simpson (1993), 12 O.R. (3d) 182
(C.A.)) to permit the officer to perform a “quick pocket search”
based on articulable cause. In any event, even if there were a
violation of s. 8, the trial judge would not have excluded the
evidence under s. 24(2) of the Charter. In the course of his
reasons, the trial judge stated that he had “declined to follow
the so called ‘plain smell’ doctrine favoured in some U.S.
authorities, which requires the officer to be qualified as an
expert in marijuana odour detection.”
[8] The trial judge also held that police did not infringe the
appellant’s rights under s. 10(b) of the Charter. He held that
the police were not required to suspend the search of the
appellant to provide him with an opportunity to retain and
instruct counsel. The trial judge did not expressly deal with the
argument made by Mr. Young on the appeal that the 13 minute delay
in informing the appellant of his rights to counsel was itself a
violation of s. 10(b).
THE TRIAL JUDGE’S REASONS FOR CONVICTION
[9] The trial judge was satisfied that the Crown had proved that
the appellant was in possession of the narcotics and drugs found
in the trunk of the vehicle and that his possession was for the
purpose of trafficking. The trial judge stated that he reached
this conclusion even without the statement made by the appellant
after he was advised of his rights to counsel.
ANALYSIS
1) The initial search of the person
[10] The search of the appellant’s person and his vehicle were
conducted without a warrant. The burden was therefore on the
Crown to establish that the search was reasonable: R. v. Collins,
[1987] 1 S.C.R. 26. The primary position of the Crown was that
Constable Ross had reasonable and probable grounds to arrest the
appellant and accordingly, had the power to search the appellant
and his vehicle, without a warrant, as an incident of that
arrest.
[11] Mr. Young, for the appellant, summarized his position on
this appeal by reference to a decision of the Court of Appeal of
Wisconsin in State v. Secrist, 582 N.W.2d 37 at 39-40 (Wis. App.
1998):
True, the marijuana odor gave the officer reason to believe
that a crime had been committed. But he did not have reason to
believe that the crime had just been committed or that Secrist
had committed it. Unlike in Mitchell [State v. Mitchell, 482 N.W.
2d 364 (1992)], where the lingering smoke in the vehicle
indicated that the marijuana had been smoked quite recently, here
there was no indication as to when the marijuana had been smoked
or by whom. The smell of marijuana lingers, and thus it could
have been smoked five minutes ago or several hours ago. See
Schoendaller, 578 P.2d at 734 (noting officer's testimony that
"mere odor of marijuana might linger in an automobile for more
than a day"). In Mitchell, the presence of smoke indicated that
either the driver, the passenger or both were smoking marijuana.
Here, the lone odor only suggests that someone had been smoking
marijuana. There was no indication as to when the marijuana had
been smoked or by whom.
While we recognize that police
officers should not be unduly restrained in
their duty to investigate crime and apprehend
criminals, the mere odor of marijuana coming
from a car with a sole occupant is not enough
to establish probable cause to arrest. Here,
the officer had only the suspicion that it
was Secrist who had been smoking marijuana.
This mere suspicion is not sufficient for
probable cause to arrest. Because the
evidence relied upon for conviction was the
fruit of a search subsequent to an unlawful
arrest, we reverse Secrist's conviction.
[Emphasis added.]
[12] In short, the appellant argues that the presence in a
vehicle of the odour of marijuana alone shows only that at some
time someone smoked marijuana in that vehicle. It does not
provide reasonable grounds to believe that the present occupant
of the vehicle was in present possession of marijuana. Thus, it
is argued, there are no grounds for an arrest or a search based
solely on the officer’s perception of marijuana odour.
[13] I agree, in part, with the appellant’s position. Had
Constable Ross based his arrest of the appellant solely on the
presence of the odour I would have held that there were not
reasonable and probable grounds to make the arrest. Given
Constable Ross’ admission that he could not from the odour alone
determine whether the marijuana had been smoked recently or even
if he was detecting the smell of smoked marijuana, the presence
of odour alone did not provide reasonable grounds to believe that
the occupant was committing an offence. The sense of smell is
highly subjective and to authorize an arrest solely on that basis
puts an unreviewable discretion in the hands of the officer. By
their nature, smells are transitory and thus largely incapable of
objective verification. A smell will often leave no trace. As
Doherty J.A. observed in R. v. Simpson at p. 202 “subjectively
based assessments can too easily mask discriminatory conduct
based on such irrelevant factors as the detainee’s sex, colour,
age, ethnic origin or sexual orientation.”
[14] On the other hand, I would not go so far as was urged by the
appellant that the presence of the smell of marijuana can never
provide the requisite reasonable and probable grounds for an
arrest. The circumstances under which the olfactory observation
was made will determine the matter. It may be that some officers
through experience or training can convince the trial judge that
they possesses sufficient expertise that their opinion of present
possession can be relied upon. Even in this case, the Crown
adduced sufficient evidence from which the trial judge could
reasonably conclude that Constable Ross accurately detected the
odour of marijuana rather than some other substance.
[15] However, Constable Ross did not make his arrest solely on
the basis of the odour of marijuana. He testified that a
combination of circumstances gave him the grounds to make the
arrest. He testified as follows:
Q. And on the night in question, can you comment on the
intensity of the odour?
A. That it was a strong odour.
Q. At that particular point in time,
sir, did you form any opinion?
A. Yes, that there was narcotics
inside that vehicle.
Q. At that particular point in time,
sir, did you believe you had grounds to
arrest the accused?
A. Yes, I did.
Q. For what offence?
A. For possession of a narcotic.
Q. And I want you to explain to His
Honour exactly what grounds you had to arrest
him at that point in time?
A. Apart from the smell, I had also
inquired or I had made a statement to the
driver of the car.
Q. Yes.
A. And his response to that just
confirmed in my own mind that that was the
case.
Q. Perhaps we can get into that. What
did you say to the accused at that point in
time, sir?
A. I advised him that I smelled
marihuana.
Q. And can you advise His Honour of
the response?
A. Yes. He was very calm; he looked,
first of all, to his right, he looked all
around the back of his car and then to his
left, over both shoulders throughout, the
inside of the car. And he very calmly said,
"No, you don't."
Q. Now, you indicated that that was
one possible or one basis for your belief
that you could have arrested him, correct?
A. That's correct, yes.
Q. What were the other bases, sir?
A. Well, there was the marihuana or
the smell of marihuana, along with that
statement, in addition to the time and the
location in being involved in Malton at that
time I guess.
Q. And you indicate time and location
in Malton, I'd like you to explain that to
the Court. What was it about the time and the
location in Malton?
A. Malton is a fairly small area that
is … the use of drugs is fairly predominant
for such a small area – in Mississauga
anyway.
Q. You indicated that you had worked
in that area for some time?
A. That's correct.
Q. Had you effected prior to this date
any other seizures of marihuana involving
motor vehicles in the Malton area?
A. Yes, I have.
Q. Can you indicate to the Court a
ball park figure as to how many times you've
seized marihuana in that context before –
specifically in the Malton area?
A. In Malton, between 40 and 50 times.
[16] After reviewing the evidence, the trial judge found that the
officer had reasonable and probable grounds to arrest the
appellant for possession of marijuana. Thus he held, in part, as
follows:
The officer must subjectively have reasonable and probable
grounds on which to base an arrest, and those grounds must be
justifiable from an objective point of view. As indicated, I
conclude that the officer had reasonable and probable grounds to
arrest the accused for the possession of a narcotic upon smelling
the strong odour of marijuana inside the vehicle.
[17] The standard of review of a trial judge’s finding of
reasonable and probable grounds is set out by Sopinka J. in R. v.
Feeney, [1997] 2 S.C.R. 13 at 37-38:
The finding by a trial judge of whether, objectively
speaking, reasonable and probable grounds for arrest existed
clearly has a significant factual element and thus is owed some
deference by an appellate court. In the present case, in arriving
at his conclusion that objective grounds for arrest existed, in
my view the trial judge committed two errors in principle that
invite review of his finding. First, he considered factors that
are not relevant to the question of reasonable and probable
grounds. …
Even if the trial judge did not err in
considering the need to preserve evidence, in
my view the trial judge erred in failing to
appreciate the evidence of the officer in
charge at the scene of the trailer. The trial
judge noted that Sgt. Madrigga testified that
he did not think he had sufficient grounds to
arrest until he observed the blood on the
appellant, but did not advert to this
evidence in concluding that reasonable and
probable grounds to arrest existed prior to
the entry into the trailer. In order to
conclude that, objectively speaking,
reasonable and probable grounds for arrest
existed, one must conclude that the officer
on the scene was unreasonable in reaching a
different conclusion. The trial judge,
however, did not explain his dismissal of the
officer's evidence in this respect. In my
view, such a failure to clarify the basis for
his finding that the objective test was
satisfied constituted an error of law.
[Emphasis added.]
[18] Thus, absent an error in principle, an appellate court is
not entitled to interfere with the trial judge’s finding of
reasonable grounds, unless that finding is unreasonable. If the
trial judge’s reasons could be interpreted as finding reasonable
and probable grounds solely on the basis of the odour of
marijuana I would consider this an error in principle. However,
as the excerpted passages from the evidence show, the officer did
not rely solely upon the smell of marijuana and it would have
been unreasonable for the trial judge to ignore that evidence in
reaching his conclusion on both the objective and subjective
grounds.
[19] Further, I am not satisfied that, based on this record, the
finding of reasonable grounds is unreasonable. I recognize that
this is a close case. There was no cloud of smoke attending the
smell. The officer did not observe any object in plain view in
the car that would support the present possession of marijuana.
The evidence does not disclose the extent of the officer’s
experience in making arrests for marijuana offences although
there is an indication of his participation in many such arrests.
However, in R. v. Golub (1997), 34 O.R. (3d) 743 at 750 (C.A.),
Doherty J.A. held that the test for finding reasonable grounds
for arrest is not as exacting as it might be in other situations
where reasonable grounds are required, such as in considering the
validity of a search warrant:
Mr. Harris' reliance on the search warrant cases is
misplaced. Both a justice and an arresting officer must assess
the reasonableness of the information available to them before
acting. It does not follow, however, that information which would
not meet the reasonableness standard on an application for a
search warrant will also fail to meet that standard in the
context of an arrest. In determining whether the reasonableness
standard is met, the nature of the power exercised and the
context within which it is exercised must be considered. The
dynamics at play in an arrest situation are very different than
those which operate on an application for a search warrant.
Often, the officer's decision to arrest must be made quickly in
volatile and rapidly changing situations. Judicial reflection is
not a luxury the officer can afford. The officer must make his or
her decision based on available information which is often less
than exact or complete. The law does not expect the same kind of
inquiry of a police officer deciding whether to make an arrest
that it demands of a justice faced with an application for a
search warrant. [Emphasis added.]
[20] As Cory J. pointed out in R. v. Storrey, [1990] 1 S.C.R. 241
at 250-51 the Criminal Code requires that an arresting officer
must subjectively have reasonable and probable grounds on which
to base the arrest. Those grounds must, in addition, be
justifiable from an objective point of view. “On the other hand,
the police need not demonstrate anything more than reasonable and
probable grounds. Specifically, they are not required to
establish a prima facie case for conviction before making the
arrest.”
[21] In the circumstances, I would not interfere with the trial
judge’s conclusion that the officer had the requisite grounds for
an arrest. The officer was, therefore, entitled to search the
appellant as an incident of a lawful arrest. In R. v. Debot
(1986), 30 C.C.C. (3d) 207 at 223 (Ont. C.A.) [affirmed on other
grounds, [1989] 2 S.C.R. 1140], Martin J.A. held that where an
officer has grounds for a lawful arrest, “the fact that the
search preceded the arrest does not prelude it from being a
search incident to a valid arrest, where the arrest quickly
follows on the search.” Accordingly, the initial search of the
appellant, which led to the finding of the cannabis resin, was
lawful and reasonable.
[22] It follows that it is not necessary to decide whether the
trial judge was right in holding that the search of the appellant
could be justified on the basis of articulable cause in
accordance with the decision of Doherty J.A. in R. v. Simpson. I
would, however, make these observations. The existence of
articulable cause does not justify all forms of investigation
short of arrest. Doherty J.A. made this clear at pp. 203-204:
I should not be taken as holding that the presence of an
articulable cause renders any detention for investigative
purposes a justifiable exercise of a police officer's common law
powers. The inquiry into the existence of an articulable cause is
only the first step in the determination of whether the detention
was justified in the totality of the circumstances and
consequently a lawful exercise of the officer's common law powers
as described in Waterfield, supra, and approved in Dedman, supra.
Without articulable cause, no detention to investigate the
detainee for possible criminal activity could be viewed as a
proper exercise of the common law power. If articulable cause
exists, the detention may or may not be justified. For example, a
reasonably based suspicion that a person committed some property-
related offence at a distant point in the past, while an
articulable cause, would not, standing alone, justify the
detention of that person on a public street to question him or
her about that offence. On the other hand, a reasonable suspicion
that a person had just committed a violent crime and was in
flight from the scene of that crime could well justify some
detention of that individual in an effort to quickly confirm or
refute the suspicion. Similarly, the existence of an articulable
cause that justified a brief detention, perhaps to ask the person
detained for identification, would not necessarily justify a more
intrusive detention complete with physical restraint and a more
extensive interrogation. [Emphasis added.]
[23] The brief detention for questioning as occurred in Simpson
is quite different from the detention and search of the
appellant’s pockets in this case. It went beyond a brief pat-down
or frisk protective search authorized by cases such as Terry v.
Ohio, 392 U.S. 1 (1968) for reasons of officer safety. (See also
R. v. Ferris (1998), 126 C.C.C. (3d) 298, leave to appeal
refused, [1998] S.C.C.A. No. 424 (Q.L.)). In considering whether
a search such as occurred in this case was justified, the court
would also have to consider the impact of recent amendments to
the Criminal Code. Sections 117.02 and 487.11 authorize
warrantless searches of the person in exigent circumstances but
generally only based upon reasonable grounds. Section 11(7) of
the Controlled Drugs and Substances Act is to a similar effect.
As Doherty J.A. noted in Simpson at p. 199:
Unless and until Parliament or the legislature acts, the
common law and specifically the criteria formulated in
Waterfield, supra, must provide the means whereby the courts
regulate the police power to detain for investigative purposes.
[Emphasis added.]
[24] However, it is unnecessary to determine that issue finally
in this case, in view of my conclusion with respect to the trial
judge’s finding of reasonable and probable grounds.
2) The warrantless search of the vehicle
[25] Counsel for the appellant submits that even if the search of
the appellant’s person was justified, the officer was required to
obtain a warrant to search the trunk of the vehicle. In my view,
that argument is foreclosed by the judgment of the Supreme Court
of Canada in R. v. Caslake, [1998] 1 S.C.R. 51. In that case, at
pp. 66-67, Lamer C.J.C. held as follows:
The police arrested the appellant because they believed that
he was either buying or selling the nine-pound bag of marijuana
which Natural Resource Officer Kamann found. In this case, the
appellant was arrested in his car, which had been observed at the
place where the marijuana was discovered. Had Constable Boyle
searched the car, even hours later, for the purpose of finding
evidence which could be used at the appellant's trial on the
charge of possessing marijuana for purpose of trafficking, this
would have been well within the scope of the search incident to
arrest power, as there was clearly sufficient circumstantial
evidence to justify a search of the vehicle. However, by his own
testimony, this is not why he searched. Rather, the sole reason
for the search was to comply with an R.C.M.P. policy requiring
that the contents of an impounded car be inventoried. This is not
within the bounds of the legitimate purposes of search incident
to arrest. [Emphasis added.]
[26] In Caslake at p. 65, Lamer C.J.C. also held that for search
to be “truly incidental to the arrest”, where the justification
for the search is to find evidence, “there must be some
reasonable prospect of securing evidence of the offence for which
the accused is being arrested.” In my view, the search of the
trunk of the vehicle fell within the scope of the common law
power. The appellant was arrested shortly after being removed
from the vehicle that he was driving. A lawful search of his
person disclosed a quantity of cannabis resin and a large amount
of money. He had been stopped in an area known to the officer for
drug trafficking. In those circumstances, there was a reasonable
prospect that the officer would find more drugs or narcotics in
the vehicle.
3) The s. 10(b) violation
[27] The trial judge correctly held that the police were not
required to suspend the search incident to arrest to permit the
appellant to exercise his right to counsel. However, the trial
judge failed to address the delay in advising the appellant of
his right to counsel. Mr. Reynolds fairly conceded that the over
ten-minute delay in advising the appellant of his right to
counsel constituted a violation of s. 10(b) of the Charter. The
decision of Lamer J. in Debot v. The Queen, [1989] 2 S.C.R. 1140
at 1146-47 is conclusive on that issue:
The right to search incident to arrest derives from the fact
of arrest or detention of the person. The right to retain and
instruct counsel derives from the arrest or detention, not from
the fact of being searched. Therefore, immediately upon
detention, the detainee does have the right to be informed of the
right to retain and instruct counsel. However, the police are not
obligated to suspend the search incident to arrest until the
detainee has the opportunity to retain counsel. There are, in my
view, exceptions to this general rule. One is where the
lawfulness of the search is dependent on the detainee's consent.
[Emphasis added.]
[28] The decision of the Supreme Court of Canada in R. v. Feeney,
supra is to a similar effect. Accordingly, the trial judge erred
in law in holding that the appellant’s rights under s. 10(b) of
the Charter were not violated. It therefore becomes necessary to
consider the admissibility of the evidence found or elicited
after the violation.
4) The application of s. 24(2) of the Charter
[29] Following the violation of the appellant’s rights, the
police found the drugs and other indicia of trafficking in the
trunk of the car and the appellant made an inculpatory statement.
The items found in the trunk are non-conscriptive evidence, the
admission of which would not affect the fairness of the trial.
The violation of the appellant’s rights was not serious, a
relatively slight delay in informing him of rights in
circumstances where he would not have been able to exercise the
rights in any event.
[30] The one factor favouring exclusion of the evidence is the
effect of the exclusion on the repute of the administration of
justice. When asked what he was taught about when to read an
arrestee the right to counsel, Constable Ross testified that,
“We’re not really taught at any particular point in time, it’s
just done subsequent to the arrest.” This suggests a serious
systemic failure within the police community, given that the
decision in Debot was released over six years prior to the arrest
in this case. However, balancing the three sets of factors under
s. 24(2), I would not exclude the real evidence found in the
search of the vehicle.
[31] I take a different view of the inculpatory statement. This
was conscriptive evidence and its admission would generally tend
to render the trial unfair. By not informing the appellant
immediately of his right to counsel, the police “in effect
compelled the statements, which statements are paradigmatic self-
incriminating evidence.” (R. v. Feeney, supra at p. 60.) Having
found the statements conscriptive, the next question is whether
alternative legal means to obtain the conscriptive evidence
existed. In R. v. Bartle, [1994] 3 S.C.R. 173 at 212, Lamer
C.J.C. held that the legal burden is on the Crown to establish
that the accused would not have acted any differently had his s.
10(b) rights been fully respected. In R. v. Bartle, Lamer C.J.C.
gave two reasons for shifting the burden of proof on this issue
to the Crown. He phrased the second reason in these terms:
Second, in light of the many warnings by this court about
the dangers of speculating about what advice might have been
given to a detainee by a lawyer had the right to counsel not been
infringed (infra, pp. 215 ff.), it is only consistent that
uncertainty about what an accused would have done had his or her
s. 10(b) rights not been violated be resolved in the accused's
favour and that, for the purposes of considering the effect of
admission of evidence on trial fairness, courts assume that the
incriminating evidence would not have been obtained but for the
violation. The state bears the responsibility for the breach of
the accused's constitutional rights. If the state subsequently
claims that there was no causal link between this breach and the
obtaining of the evidence at issue, it is the state that should
bear the burden of proving this assertion. [Emphasis added.]
[32] The Crown in this case relies upon the fact that when the
appellant was finally advised of his right to counsel he waived
his right to consult with counsel at that time and answered the
officer’s question. In Bartle at p. 213, Lamer C.J.C. pointed out
that
Of course, once there is positive evidence supporting the
inference that an accused person would not have acted any
differently had his or her s. 10(b) rights been fully respected,
a s. 24(2) applicant who fails to provide evidence that he or she
would have acted differently (a matter clearly within his or her
particular knowledge) runs the risk that the evidence on the
record will be sufficient for the Crown to satisfy its legal
burden (the burden of persuasion).
[33] However, on this record it is difficult to determine whether
the appellant would have waived his right to consult counsel and
made the inculpatory statement after the drugs were found if he
had been informed of his right to counsel in a timely way. On the
one hand, as Mr. Young pointed out in argument, the appellant
would have had over ten minutes to consider his position before
the drugs were found and might well have made a different choice.
On the other hand, the appellant did not testify on the voir
dire, and therefore failed to provide any evidence that he would
have acted differently. Because of his finding that there was no
s. 10(b) violation, the trial judge made no findings of fact on
this issue that would assist in determining the trial fairness
question. In my view, this question can only be resolved on a new
trial. If the trial judge were to find that this evidence would
have affected the fairness of the trial, it would have to be
excluded. This is particularly the case given the concerns about
the effect of the exclusion on the repute of the administration
of justice already expressed.
5. No substantial wrong or miscarriage of justice
[34] The Crown submits that, even assuming the statement should
not have been admitted, this is one of those rare cases where it
is possible to apply the proviso in s. 686(1)(b)(iii) of the
Criminal Code and dismiss the appeal. Mr. Reynolds points out
that the trial judge expressly held that he would have convicted
the appellant without the statement. I, of course, accept the
trial judge’s finding. However, improper admission of evidence in
violation of the Charter engages broader trial fairness concerns.
[35] In R. v. Elshaw, [1991] 3 S.C.R. 24 at 46-47, Iacobucci J.
expressed serious reservations as to the application of the
proviso where the appellate court finds that evidence has been
improperly admitted under s. 24(2) of the Charter:
I find the Crown's resort to the curative provision of s.
686(1)(b)(iii) somewhat disturbing in a case of this kind. If the
evidence in question should have been excluded under s. 24(2) of
the Charter because its admission would put the administration of
justice into disrepute, then generally its admission was such as
to amount to a substantial wrong or miscarriage of justice,
thereby putting matters beyond the reach of s. 686(1)(b)(iii),
which is available to cure errors of law where no substantial
wrong or miscarriage of justice results. Consequently, s.
686(1)(b)(iii) is not available in this case. This is not to say
that there may not be other circumstances where the curative
provision could apply notwithstanding that evidence should have
been excluded under s. 24(2) of the Charter.
This argument also comes dangerously
close to the reasoning of the Court of Appeal
when it concluded that self-incriminating
evidence probably would have been obtained in
the absence of the s. 10(b) violation. Such
speculation is unwarranted, and defeats the
purpose of enshrined Charter rights. In any
event, had evidence of the self-incriminating
statement been excluded, it is entirely
possible that the defence strategy would have
been different. For example, the appellant
might have testified. Moreover, it is
arguable that the similar fact evidence of
the appellant's previous conviction would not
have been admitted had the impugned statement
been excluded. It can, therefore, hardly be
said that, as submitted by the Crown, the
verdict would necessarily have been the same
without that evidence. [Emphasis added.]
[36] On this record, I cannot say that if the appellant’s
statement was improperly admitted no substantial wrong or
miscarriage of justice resulted. As in Elshaw, the defence
strategy might have been different and the appellant might have
testified.
DISPOSITION
[37] Accordingly, I would allow the appeal, quash the convictions
and order a new trial.
“M. Rosenberg J.A.”
“I agree: J. Morden A.C.J.O.”
“I agree: Austin J.A.”
RELEASED: April 7, 1998 (JWM) |